ARTICLE: Criminal Law: The Exclusionary Rule and Its Alternatives -- Remedies for Constitutional Violations in Canada and the United States Skip over navigation
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Copyright (c) 1985 Northwestern School of Law
Journal of Criminal Law & Criminology

ARTICLE: Criminal Law: The Exclusionary Rule and Its Alternatives -- Remedies for Constitutional Violations in Canada and the United States

Fall, 1985

76 J. Crim. L. & Criminology 608


Donald V. MacDougall *



On April 17, 1982, on the lawn of Ottawa's Parliament Hill, Queen Elizabeth II proclaimed into force Canada's constitution. 1 Her action not only ended the United Kingdom's role in Canada's legal system by patriating constitutional amendment, but also entrenched an evidentiary exclusionary clause for certain violations of its guaranteed rights and freedoms. The Constitution Act, 1982 2 has substantially affected Canada's system of constitutional government, 3 including a modification of the previous doctrine of Parliamentary supremacy. 4 Most important for this Article, however, is section 24 which entrenches as the supreme law of Canada remedies for the violation of constitutionally guaranteed rights and liberties; among the remedies, is excluding evidence in court.

While Canada was embracing an evidentiary exclusionary rule as its constitutional remedy, the similar rule in the United States was being questioned by the judiciary, legislature and public. This debate was primarily a reaction to the phenomenal judicial expansion of constitutional rights under the Warren Court. 5 The expansion of the exclusionary rule was the most visible product and therefore caused a concerned reexamination of the constitutional and remedial effects flowing from the violation of those constitutional rights. Perhaps no American legal doctrine has raised passions to such a height as the exclusionary rule.

This debate centers mostly on the inadequacies of either the exclusionary rule or the alternatives to it. Adequacy of the remedy, however, is not the only issue. Also important are the availability and accessibility of ...
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